This blog will consider some techniques for labeling or filtering Internet to protect children while allowing freedom of access and speech for adults. The blog has been expanded to include some other recent specific problems involve protecting minors (such as with cell phone use).

About Me

Since the 1990s I have been very involved with fighting the military "don't ask don't tell" policy for gays in the military, and with First Amendment issues. Best contact is 571-334-6107 (legitimate calls; messages can be left; if not picked up retry; I don't answer when driving) Three other url's: doaskdotell.com, billboushka.com johnwboushka.com Links to my URLs are provided for legitimate content and user navigation purposes only.
My legal name is "John William Boushka" or "John W. Boushka"; my parents gave me the nickname of "Bill" based on my middle name, and this is how I am generally greeted. This is also the name for my book authorship. On the Web, you can find me as both "Bill Boushka" and "John W. Boushka"; this has been the case since the late 1990s. Sometimes I can be located as "John Boushka" without the "W." That's the identity my parents dealt me in 1943!

Thursday, September 04, 2014

Could people who viewed hacked iCloud "lewd" photos of under-18 celebrities be charged with possessing child pornography? A legal labyrinth may exist (the "mens rea" concept)

Vox offers an important analysis of whether someone who
looked at hacked photos (in the Cloud hack incident, that seems to focus on the
Apple iCloud) that were of someone under 18 and that were “lewd” in a legal
sense, could be charged with possessing child pornography, link here. The article specifically raises the question
with respect to McKayla Maroney.

It’s also possible to ask whether Maroney could be charged
with producing child pornography with the selfie. This sounds very unlikely in practice, and
she would have had to intend it to be posted or distributed.

Vox mentions a Catholic University (Washington DC) paper on
the legal aspects of the sexting problem, here.

Vox mentions that normally someone has to know or reasonably
suspect that an image is child pornography, although the wording of various
state laws can be critical. Vox mentions
an affirmative defense doctrine called “mens rea”, Latin for mental state. Vox warns that police could review search
engine arguments from a person’s computer to try to determine if the person
suspected or knew that the person was under 18.
It’s also a good question, what level of suspicion is reasonable?

One question that comes to mind is an image(s) from a foreign
country. A few countries (Russia) have
weak laws against child pornography, even if they pretend to be moralistic (as with
Russia’s anti-gay propaganda law).
Non-western countries might have bad “reputations” which arguably should
make consumers suspicious, especially countries with cultures antagonistic to
the West. Possibly hackers in such countries
could try to leverage child pornography as a security threat.

Another and closely related problem could occur with sexually explicit foreign films, or images from the
films, even from more “mainstream” countries, if the age of consent in those
countries is less than 18. In the US,
film producers must, according to federal law, maintain records to show that
actors who appear in explicit scenes are at least 18 when the images are
created. Most other western countries
(Canada, Britain, etc) seem to have similar requirements. Hopefully, reputable film companies would
adhere to this practice wherever shots are done. IMDB does not always tell visitors the age or
birthdates of actors (more recently it has been leaving this information out on
some lesser known actors). Films often
have plot lines where older but physiologically mature minors (maybe 17) have
sex (let’s start with Shakespeare’s “Romeo and Juliet”, which English teachers have to disclaim for ninth graders). This has always been viewed as legal as long
as the actual actors are 18 at the time of shooting (in the US and most western
countries). The lack of public
verification of age in some countries could raise new legal questions, though,
even for consumers.

All of this raises the question as to whether the government
would want to scan cloud backups, at least for digitally hashmarked images
known to the NCMEC.

In any case, someone like Maroney is not a victim in the
practical or moral sense envisioned by NCMEC.
These are mostly much younger people who get the attention of true “pedophiles”
(pedophilia and ephebophilia – the Oscar Wilde syndrome – aren’t the same
thing) or sex traffickers. As Ashton
Kutcher’s campaign says, “Real men don’t buy girls.” (This problem really does seem to be overwhelmingly heterosexual.) And there is no visible change in someone’s physiological
maturity at 17 years, 364 days, and 18 years.
It’s a place where a legal line is drawn.

Update: Sept.. 12

The government can look at emails without a warrant if they are more than 180 days old (source). There are calls in Congress to tighten the requirement for a warrant. But, right now, theoretically, the police could scan cloud backups for c.p. images (by hashmark) that had been stored for more than 180 days, without a warrant. I haven't heard of this actually being done.

Update: Oct. 4

Deleting an image from a computer often results in the Cloud Service deleting it from a backup. But police could still try to look for older deleted images in a cloud, just as they can on a hard drive. But I haven't heard that this has actually happened.

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